Annie Melanie Lucas v Government of the Commonwealth of Australia

For an extradition appeal, a requested person who knowingly places herself beyond the requesting state’s legal process is a fugitive. Once that finding is made, she cannot rely on subsequent passage of time under section 82 of the Extradition Act 2003, even where the requesting state was culpably slow. The fresh-evidence test in an extradition appeal remains the Ladd v Marshall test, applied in Hungary v Fenyvesi: the evidence must not reasonably have been available at first instance and must be capable of being determinative. An appeal does not ordinarily create a continuing opportunity to advance a stronger Article 8 case based merely on foreseeable hardship, anxiety or delay. Exceptional admission outside that test requires exceptional circumstances.

The appellant faced extradition to Australia under an accusation warrant concerning 103 alleged offences of theft or misappropriation committed while she worked as a bookkeeper. Westminster Magistrates’ Court conducted a two-day extradition hearing. A District Judge’s order of 16 May 2024 was challenged on fugivity and passage of time under section 82, health under section 91, and Article 8 of the Convention. Permission to appeal was refused on the papers, and the appellant renewed the application.

She also sought to adduce three further statements, including evidence about her health, family circumstances and the recent death of her stepdaughter. The central questions were whether the fresh evidence was admissible and whether the District Judge’s conclusions were arguably wrong.

1. Permission refused. The District Judge had properly directed himself on fugivity by applying Kakis v Cyprus. The respondent bore the burden of proof to the criminal standard. The essential question was whether the appellant knowingly placed herself beyond Australia’s legal process. The evidence supported the finding that she knew of the warrant before leaving Brisbane, was at least partly motivated to place herself beyond Australia’s reach, and had no intention of returning.
2. Once fugivity was established, the appellant could not rely, from departure onwards, on passage of time under section 82 of the Extradition Act 2003, even if the Australian authorities had delayed culpably. Alternatively, the District Judge was entitled to find extradition not oppressive or unjust, having regard to the seriousness and duration of the alleged offending, the high public interest in extradition, the appellant’s awareness of the risk of being called to account, and the absence of a sufficiently fundamental change in her life.
3. The medical ground under section 91 failed. The statutory threshold of oppression was high, and there was no evidence that the appellant’s conditions could not be treated in Australia.
4. The court rejected the submission that an Article 8 appeal automatically required consideration of all material available at the appeal date. The governing approach was the fresh-evidence test in Hungary v Fenyvesi, incorporating Ladd v Marshall. Evidence must not reasonably have been available at first instance and must be capable of determining the outcome. An exceptional residual discretion may exist where necessary to avoid a Convention breach, but it requires exceptional circumstances.
5. Most of the proposed evidence was available, or could have been obtained, earlier, or merely repeated the existing case. The stepdaughter’s death was genuinely fresh, but it was not shown to have an exceptional impact. There was no independent psychological or medical evidence, and no evidence that the appellant’s conditions could not be treated in Australia. The fresh evidence therefore did not arguably tip the Article 8 balance.

• Westminster Magistrates’ Court: extradition proceedings were conducted over 9 and 10 April 2024.
• District Judge Clewes: an order dated 16 May 2024 was made against the appellant. The grounds concerned fugivity and passage of time, health, and Article 8.
• High Court (Administrative Court): permission to appeal was refused on the papers on 22 October 2024 and the renewed application, including the fresh-evidence application, was refused.